The Supreme Court collegium on Tuesday sent to the Centre the names of two high court chief justices for appointment as judges in the top court but included for the first time ever a rider that its earlier recommendation to elevate five judges should be approved before clearing the new choices.

The collegium’s uncommon advice coincides with a perception in the legal fraternity that the Narendra Modi government has adopted a “pick and choose” method to clear the names of judges, which affects the seniority of judges in the Supreme Court. Seniority is a critical factor that decides who becomes the Chief Justice of India.

On Tuesday, the collegium’s resolution concluded by emphasising that its December 13 recommendation to elevate Justices Pankaj Mithal, Sanjay Karol, P.V. Sanjay Kumar, Ahsanuddin Amanullah and Manoj Misra should have precedence over the two names recommended on Tuesday.

“Therefore, the appointments of five judges recommended on December 13, 2022, should be notified separately and earlier in point of time before the two judges recommended by this resolution,” the collegium said.

The collegium said this while recommending the appointment of Allahabad High Court chief justice Rajesh Bindal and his Gujarat High Court counterpart Aravind Kumar as judges of the Supreme Court.

All the six members of the collegium, led by Chief Justice of India D.Y. Chandrachud, were unanimous in recommending the name of Justice Bindal.

However, on Justice Kumar, Justice K.M. Joseph “has expressed his reservations on the ground that his name can be considered at a later stage”, the resolution said.

The number of judges (6) who took part in Tuesday’s meeting was also another unique feature. Usually, five judges, headed by the Chief Justice of India, meet for collegium meetings.

On Tuesday, Justice Sanjiv Khanna, the seventh senior-most judge, also participated. The other members of the collegium — Justices Sanjay Kishan Kaul, Joesph, M.R. Shah and Ajay Rastogi — and the sixth senior-most judge will retire before Chief Justice of India Chandrachud. Justice Khanna is the next in line, under normal circumstances, to be Chief Justice of India — the reason he took part in the collegium meeting.